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Immigration Law Stories

(Foundation Press, David A. Martin & Peter Schuck, forthcoming 2005) Draft-July, 2004

Chae Chan Ping and Fong Yue Ting: The Origins of Plenary Power

Gabriel J. Chin

Chester H. Smith Professor of Law

University of Arizona James E. Rogers College Law

At the Founding, there was essentially no federal immigration policy.1 States

regulated entry of immigrants, particularly in major seaports like New York and later San

Francisco, but once the newcomer had successfully landed, he or she was in. There were

no green cards, no quotas, no caps, no Border Patrol or ICE. And there was no

deportation.

Anxiety over Asian immigration led the federal government to assume regulatory

authority over immigration.2 Although the policy goal of dealing with the “Yellow Peril”

no longer significantly influences the content of the Immigration and Nationality Act, this

anxiety spawned a pair of late nineteenth century Supreme Court cases establishing the

principle that Congress possesses plenary power to regulate immigration. More than a

century later, these cases continue to shape federal constitutional authority over

immigration.

1 Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 Colum L Rev 1833 (1993). 2 The Supreme Court dates the beginning of federal immigration regulation to 1875, with the passage of the Page Law, Act of Mar 3, 1875, 18 Stat 477, designed to regulate allegedly involuntary immigration of Asian men as “coolies” and women as prostitutes. INS v St. Cyr, 533 US 289, 305 (2001). An 1862 law also addressed immigration of coolies. Act of Feb. 19, 1862, 12 Stat 340 (repealed 1974).

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In Chae Chan Ping v United States,3 sometimes called the Chinese Exclusion

Case, the Court held that a returning resident noncitizen could be excluded if Congress

determined that his race was undesirable--or for any other reason. In Fong Yue Ting v

United States,4 the Court held that these noncitizens could be deported because of their

race--or for any other reason. Under domestic law, of course, racial classifications are

suspect; indeed, discrimination is more likely to be illegal than discrimination on any

other basis. The message from these cases, then, is that where the status of immigrants is

concerned, almost anything goes. Congressional power to determine who may come and

stay, and who may not, is virtually unrestricted.

Background

The United States is a nation of immigrants, and early prospects for the

development of a Chinese immigrant community in America were bright. Chinese came

to the country they called “Gold Mountain” to participate in the California gold rush, and

their numbers grew slowly. Between 1870 and 1880, 138,941 Chinese migrated to the

United States (4.3% of all immigration); by 1880, the Chinese population totaled

105,465, 0.2% of the U.S. population of 50 million.5

This immigration was specifically authorized by the Burlingame Treaty,

concluded between China and the United States in 1868.6 The signatory nations

recognized “the inherent and inalienable right of a man to change his home and

3 130 US 581 (1889). 4 149 US 698 (1893). 5 Bill Ong Hing, Making and Remaking Asian America Through Immigration Policy, 1850-1990 48 (Stanford 1993); Erika Lee, At America’s Gates, Chinese Immigration During the Exclusion Era, 1882-1943 25 (North Carolina 2003); Lucy E. Salyer, Laws Harsh as Tigers 8 (North Carolina 1995). 6 16 Stat 739 (July 28, 1868).

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allegiance, and also the mutual advantage of free migration and emigration of their

citizens and subjects . . . for purposes of curiosity, of trade, or as permanent residents.”

Travelers from one country to the other were entitled to “the same privileges, immunities,

and exemptions in respect to travel or residence, as may there be enjoyed by the citizens

or subjects of the most favored nation.”7

By the mid-1870s, however, California and other western states demanded

restriction of Chinese immigration, primarily because of racial hostility fueled by

economic depression in California. The Burlingame Treaty was modified in 1880 to

allow restriction of the immigration of Chinese laborers, but the rights of those already in

the country on November 17, 1880 were to be protected, including their right to come

and go.8 Taking advantage of this modification, Congress passed the Chinese Exclusion

Act9 in 1882. The Act suspended immigration of Chinese laborers for ten years,

excluding from entry any who were not in the United States on November 17, 1880, or

who arrived within 90 days after the Act came into force. Merchants and government

officials were exempted. The Act required registration documents for laborers, to serve

as “proper evidence of their right to go from and come to the United States.”10 These

documents were issued upon departure, so certifying the identity of individuals who

might later wish to return. Those present in violation of the Act could be deported.

7 Id at 740. 8 Treaty between the United States and China concerning immigration, 22 Stat 826, 827 (Nov 17, 1880), Art. II (“Chinese laborers who are now in the United States shall be allowed to come and go of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation.”) 9 Chinese Exclusion Act, Act of May 6, 1882, ch. 126, 22 Stat 58. 10 Id § 4, 22 Stat 59.

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The Chinese Exclusion Act worked. In 1882, before it took effect, over 39,000

Chinese came to America. In 1887, Chinese immigration bottomed out at 10!11 While

America’s population more than doubled between 1880 and 1920, the population of

Chinese ancestry declined by over a third.12

The Chinese Exclusion Act solidified another element of U.S. citizenship policy.

The first naturalization law of 1790 allowed naturalization of “free white persons;” by

judicial decision, Chinese were not regarded as white.13 The 1882 Act codified this rule,

prohibiting any state or federal court from naturalizing Chinese.14 Accordingly, new

Chinese immigration was prohibited; those already here could not become citizens.

The Act was motivated in large part by the racist ideas that were then in vogue.

Senator John F. Miller of California, a leader of the restriction movement, reasoned:

It is not numbers that are needed; quality is of more importance than quantity. One complete man, the product of free institutions and a high civilization, is worth more to the world than hundreds of barbarians. Upon what other theory can we justify the almost complete extermination of the Indian, the original possessor of all these States? I believe that one such man as Washington, or Newton, or Franklin, or Lincoln glorifies the Creator of the world and benefits mankind more than all the Chinese who have lived, and struggled, and died on the banks of the Hoang Ho.15

Legislators were not concerned only with the Chinese; some viewed them as part of a

larger racial problem. For example, Senator John P. Jones of Nevada reasoned: “What

11 Lee, At Americas Gates at 43-44 (cited in note 5). 12 Id at 238. 13 In re Ah Yup, 1 F Cas 223 (CC D Cal 1878) (“Mongolian” ineligible for naturalization). 14 Chinese Exclusion Act § 14, 22 Stat 61. 15 13 Cong Rec 1487 (1882).

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encouragement do we find in the history of our dealings with the negro race or in our

dealings with the Indian race to induce us to permit another race-struggle in our midst?”16

Critical to understanding the legal situation of the Chinese in this period is that

they were frequently represented by high quality legal counsel. In the 1880s, a federal

constitutional right to appointed counsel in even capital criminal cases was still decades

away,17 and many Chinese immigrants were miners, manual laborers, laundrymen or in

other occupations where the salaries would scarcely permit hiring even the most

inexperienced counsel. Many immigrants, moreover, were on a boat or in federal

custody; even an unskilled job was a dream for the future. Nevertheless, many

immigrants and would-be immigrants were represented by counsel.18

Indeed, Chinese immigration cases making it to the Supreme Court were handled

by a “Dream Team” of elite lawyers of the day. Chae Chan Ping, for example, was

represented by leading Supreme Court advocates; George Hoadly was a former Governor

of Ohio, and James C. Carter was “widely acknowledged as the leader of the American

bar,”19 based in large part on the many cases he argued in the Supreme Court. Chae Chan

Ping was also represented by Thomas S. Riordan, winner of several Supreme Court

interpretations of the Exclusion Act favorable to Chinese immigrants,20 and Harvey S.

16 Id at 1745. 17 It remains the law that “there is no Sixth Amendment right to appointed counsel at a deportation hearing.” United States v Torres-Sanchez, 68 F3d 227, 231 (8th Cir 1995) (quoting United States v Campos-Asencio, 822 F2d 506, 509 (5th Cir 1987)). 18 Lee, At America’s Gates at 138-40 (cited in note 5); Salyer, Laws Harsh as Tigers at 70-72 (cited in note 5). 19 Ullman v United States, 350 US 422, 437 (1956). Remarkably, in Williams v North Carolina, 325 US 226, 228 n.4 (1945), decided forty years after Carter’s death, the Court quoted as authority a brief Carter had written in an earlier case. Carter’s life and jurisprudence are explored in Lewis A. Grossman, James Coolidge Carter and Mugwump Jurisprudence, 20 Law & Hist Rev 577 (2002). 20 Lau Ow Bew v United States, 144 US 47 (1892) (merchants resident in the United States returning from brief overseas trips did not have to have certificate of Chinese government showing that they were merchants); United States v Jung Ah Lung, 124 US 621 (1888) (right to reenter may be proved through

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Brown, who argued several Supreme Court cases for railroads and had already won a

case there for a Chinese immigrant.21

Fong Yue Ting’s attorneys were equally distinguished. Joseph H. Choate served

as Ambassador to the Court of St. James and frequently argued before the Supreme

Court. 22 J. Hubley Ashton as Acting Attorney General advised President Lincoln during

the Civil War,23 and later he represented the Southern Pacific Company.24 Maxwell

Evarts won several important cases for the Chinese.25 Fittingly, he was the son of

William M. Evarts, who had served as Attorney General, Secretary of State, and U.S.

Senator. The senior Evarts as Secretary of State oversaw the negotiation of the 1880

treaty protecting the rights of Chinese laborers already in the United States; in the Senate,

he supported paying an indemnity to the families of 28 Chinese who had been massacred

in Rock Springs, Wyoming, and opposed the amendment to the Chinese Exclusion Act at

issue in Chae Chan Ping on the ground that it violated treaty obligations.26

These lawyers were not working pro bono, nor were they what would now be

called public interest lawyers; they represented trusts and railroads more often than

humble toilers like their Chinese clients. The existence of a network of Chinese family

and district organizations in California and New York to which virtually all of the

Chinese in America paid dues made it possible to retain these distinguished men, and

government records if certificate lost); Chew Heong v United States, 112 US 536 (1884) (reentry certificate requirement inapplicable to Chinese laborer who left before effective date of Act). 21 Chew Heong v United States, 112 US 536 (1884). 22 Only for other people’s clients were taxes certain; in Pollock v Farmers’ Loan and Trust Co.,158 US 601 (1895), Choate successfully argued that the federal income tax unconstitutional, leading to the Sixteenth Amendment. 23 See 11 US Op Atty Gen 70 (Aug. 26, 1864). 24 Ashton later was co-counsel with Riordan in Lau Ow Bew v United States, 144 US 47 (1892). 25 See Chin Yow v United States, 208 US 8 (1908) (Holmes) (habeas corpus may be granted if individual is ordered deported by administrative authority without due process); United States v Wong Kim Ark, 169 US 649 (1898) (persons of Chinese ancestry born in the United States are citizens). 26 Chester L. Barrows, William M. Evarts: Lawyer, Diplomat, Statesman 476 (North Carolina 1941)

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other lawyers in the much more common proceedings in the federal trial courts. At the

top of the network was an organization of organizations, the Chinese Six Companies,

which historian Lucy Salyer explains became “the advocate for the Chinese community

in the white world.”27 Thomas S. Riordan was counsel to the Six Companies.

The 1882 Act left open many questions for lawyers and courts to address. Were

the “Chinese” who were covered by the Act defined by racial ancestry, or nationality?

Many persons, for example, were citizens or nationals of countries other than China, but

of Chinese descent.28 Who were the “laborers” covered by the Act? Did it mean

unskilled laborers, or were those in skilled trades and crafts also covered?29 Did the Act

Chinese sailors on U.S.-flag ships covered by the Act when they returned to port?30 And

would the Act be applied retroactively to Chinese who left before the effective date of the

Act, and who therefore could not possibly have obtained certificates?31 Although the

federal court’s decisions were not uniform, it is fair to say that they frequently took the

interests of the Chinese seriously, and frequently ruled in their favor.

In 1884, Congress made clear that it regarded the legal defense of Chinese

immigrants as too effective, and the resulting judicial decisions too lenient. A new

statute provided that the Act would apply “to . . . Chinese, whether subjects of China or

any other foreign power,”32 making explicit that exclusion was based on race, not nativity

27 Salyer, Laws Harsh as Tigers at 40 (cited at note 5). 28 Compare In re Ah Lung, 18 F 28 (CC D Cal 1883) (Field) (Act applies to persons of Chinese race) with United States v Douglas, 17 F 634 (CC D Mass 1883) (Act applies only to subjects of China). 29 In re Ho King, 14 F 724 (D Or 1883) (Chinese actor is not a laborer). 30 Justice Field on circuit ruled such sailors were not covered by the Act, and could land. Case of Chinese Laborers on Shipboard, 13 F 291 (CC D Cal 1882). 31 The Courts held that these Chinese were excused from the obligation to obtain certificates. In re Leong Yick Dew, 19 F 490 (CC D Cal 1884) (counsel for the immigrant was Thomas Riordan); In re Chin A. On, 18 F 506 (D Cal 1883) (Hoffman). But those who left after the Act, failed to get a certificate, but changed their mind and wanted to return, were out of luck. See In re Pong Ah Chee, 18 F 527 (D Colo 1883). 32 Act of July 5, 1884, ch. 220, 23 Stat 115, 118.

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or citizenship, and that it also applied to “both skilled and unskilled laborers and Chinese

employed in mining.”33 The Act narrowed eligibility for favored treatment as merchants.

Finally, the Act made clear that the reentry certificate was “the only evidence permissible

to establish [a returning resident’s] right of re-entry.”34

The 1884 Act, like the 1882 law, raised the question of retroactivity. Chew

Heong, a Chinese laborer, sought admission without a return certificate, claiming that he

had left in 1881, before they were available. Thomas Riordan and Harvey Brown

represented him; Justice Harlan wrote for the Court that under the Act Chew Heong could

show lawful residence with other evidence.35 This construction, said the Court, would

give full prospective effect to the 1882 and 1884 legislation, while protecting the treaty

rights of Chinese laborers who left before exclusion went into effect. In a later case, but

this time over the dissent of Justice Harlan, Riordan persuaded the Court that the

government copy of the reentry certificate could be examined in the case of a laborer who

left the United States with a reentry certificate but was unable to present it because it had

been stolen by pirates.36

Virulent anti-Chinese activity, such as the 1885 massacre of the Chinese

community of Rock Springs, Wyoming and the 1885-86 expulsion of the Chinese

residents of Seattle and Tacoma, induced Congress to continue to tighten exclusion.

Congress passed and the President signed a strengthened Chinese Exclusion Law in

September, 1888, but by its terms, the new statute was to take effect only upon

33 Id. 34 Id at 116. 35 Chew Heong v United States, 112 US 536 (1884). 36 United States v Jung Ah Lung, 124 US 621 (1888).

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conclusion and ratification of treaty modifications,37 and negotiations between the United

States and China broke down. Accordingly, Congress provided in the so-called Scott Act

that any Chinese laborer, resident in the United States, who left and had not returned by

the effective date of the Act could not “return to, or remain in, the United States.”38 In

effect most persons of Chinese ancestry could leave the United States only on one-way

trips.

As for the return certificates, the statute provided that no more could be issued,

and that “every certificate heretofore issued . . . is hereby declared void and of no effect,

and the chinese laborer claiming admission by virtue thereof shall not be permitted to

enter the United States.”39 Perhaps 30,000 Chinese residents of the United States, but

temporarily overseas held, reentry certificates that were now void.40

Chae Chan Ping had come to the United States in 1875, and lived there until June

2, 1887, when he returned for a visit to China after first having obtained a reentry

certificate. On September 7, 1888, before the Scott Act had even been introduced in

Congress, he boarded a vessel bound for San Francisco. He arrived on October 7 or 8

(the court papers are inconsistent), with a reentry certificate that had been declared void

while he was at sea.

Prior Proceedings in Chae Chan Ping

37 Act of Sept. 13, 1888, ch 1015, 25 Stat 476. 38 Act of Oct 1, 1888, ch. 1064, § 1, 25 Stat 504. 39 Id § 2. 40 Charles J. McClain, In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth Century America 194 (California 1994). Professor Lee puts the figure at 20,000. Lee, At America’s Gates at 45 (cited at note 5).

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The court proceedings in San Francisco were swift. A habeas corpus petition was

filed on October 10, 1888; Chae Chan Ping was brought to court on October 12, where

the petition was heard by Circuit Judge Lorenzo Sawyer and District Judge Ogden

Hoffman, who had wide experience with Chinese immigration, naturalization and

discrimination cases.41 The immigrant was represented by Thomas Riordan and two

other lawyers. The Circuit Court ruled against him on October 15; that same day, a

notice of appeal was filed and bail was granted.

The Circuit Court assumed that Chae Chan Ping was covered by the 1888 Act,

making the unanswerable point that the Act covered “not every Chinese laborer who shall

have departed and not yet have started on his return, but every Chinese laborer who shall

have departed, and shall not in fact “have returned before the passage of this act.’”42 The

court noted that “great hardship” to individuals may bear “upon the construction of an

ambiguous statute”, but there was no room, as there had been with respect to the 1882

and 1884 enactments, to deny the statute retroactive effect.43 Accordingly, the central

legal issue was whether for some other reason the Act could not be applied to Chae Chan

Ping.

It was insufficient for him to show that at one point a right or privilege existed

and at a later point it did not. No legal doctrine mandates that privileges once granted can

never be withdrawn; the government can change the speed limit or close national parks.

41 See In re Baldwin, 27 F 187 (CC D Cal 1886) (Sawyer), revd as Baldwin v Franks, 120 US 678 (1887); In re Jung Ah Lung, 25 F 141 (D Cal 1885) (Hoffman), affd, 124 US 621 (1888); In re Tiburcio Parrott, 1 F 481 (CC D Cal 1880) (Hoffman) (invalidating California constitutional prohibition on corporations employing Chinese or Mongolians); In re Ah Yup, 1 F Cas 223 (CC D Cal 1878) (Sawyer) (Chinese not white, and therefore ineligible for naturalization). 42 In re Chae Chan Ping, 36 F 431, 432 (CC ND Cal 1888). 43 Indeed, the court noted that in the Senate, while the bill was pending, a motion to reconsider was made “to provide an exception of this very class of cases, but that body refused to reconsider for that purpose. So the president, in his message accompanying his approval, . . . suggested [legislation] making this very exception; but congress declined to act upon the suggestion.” Id at 433.

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The question here was whether the government’s power was restricted for some reason,

whether a privilege had in effect matured into a right.

The Circuit Court held that the treaty did not represent a contract with individual

Chinese immigrants binding the government. “There was no meeting of two minds on

the terms of an agreement. The Chinese laborers were not consulted at all in the

matter.”44 But even in the absence of a contract, the court recognized, a privilege might

have become “fully executed” so that it could not be arbitrarily taken away. “But we do

not regard the privilege of going and coming from one country to another as of this class

of rights. The being here with a right of remaining is one thing, but voluntarily going

away with a right at the time to return is quite another.”45 Thus, the court seemed to

recognize the possibility that accepting an invitation to move here might create a

continuing right to remain, but an unaccepted offer or other expectancy could be

withdrawn.

The court concluded that the 1888 law was not ex post facto, for it created no

crime and imposed no penalty.46 The court noted that in the past, it had discharged its

duty “however unpleasant” to protect the rights of the Chinese under the law; “[a]s we

faithfully enforced the laws, as we found them, when they were in favor of the Chinese

laborers, we deem it, equally, our duty to enforce them in all their parts, now that they are

unfavorable to them.”47 Any redress for the violation of the treaty must be sought by “the

nation with whom we have made the treaty.”48

44 Id at 434. 45 Id. 46 Id at 436. 47 Id. 48 Id at 435.

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Proceedings in the Supreme Court

Four lawyers represented Chae Chan Ping in the Supreme Court. George Hoadly

and James C. Carter filed the main brief; Carter also filed a shorter summary. Thomas

Riordan and Harvey Brown argued. For the United States the Solicitor General filed a

brief; lawyers appointed for the state of California filed an amicus brief.49 One of the

lawyers was John F. Swift, who had been one of the American commissioners who

negotiated the 1880 treaty with China. By supporting the United States, he was in

essence arguing that the treaty he had helped negotiate was unenforceable.

The Court, in a unanimous opinion written by Justice Stephen Field, began by

exploring the background of the exclusion law, and the reasons that Californians in

particular had sought restriction on Chinese immigration. Californians claimed “that the

presence of Chinese laborers had a baneful effect upon the material interests of the state,

and upon public morals; that their immigration was in numbers approaching the character

of an Oriental invasion, and was a menace to our civilization.”50 The Court also asserted

that administration of the laws allowing reentry of returning residence had been afflicted

with fraud; because of “the loose notions entertained by the witnesses of the obligation of

an oath,” some Chinese got in claiming to be returning residents “who, it was generally

believed, had never visited our shores. To prevent the possibility of the policy excluding

chinese laborers being evaded, the act of October 1, 1888 . . . was passed.”51

49 Brief By Counsel Appointed by the State of California in Support of the Contention of the United States, Chae Chan Ping v United States, 130 US 581 (1889), No. 88-1446 (filed Mar 21, 1889). 50 Chae Chan Ping v United States, 130 US 581, 595 (1889). 51 Id at 598, 599.

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There was no doubt that Chinese laborers could be prohibited prospectively, or

that an otherwise valid treaty could be repudiated by subsequent legislation.52 The

Supreme Court, like the Circuit Court, recognized the uncontroversial proposition that

later legislation could effectively invalidate an earlier, inconsistent treaty; “the last

expression of the sovereign will must control.”53 The real issue was whether Chae Chan

Ping was in a different situation because he had left with the assurance of the United

States government that he could return.

The innovative ground of the Supreme Court’s decision, which had not been

focused on in the Circuit Court, was the breadth of federal power over immigration. The

Constitution does not in so many words state that the federal government has any, much

less plenary, authority over immigration. However, the Court concluded: “That the

government of the United States, through the action of the legislative department, can

exclude aliens from its territory is a proposition which we do not think open to

controversy.”54 The Court recognized this authority not from any particular provision of

the Constitution, but as inherent in sovereignty:

While under our constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be involved for the maintenance of its absolute independence and security throughout its entire territory.55

52 Chae Chan Ping’s brief stated: “As to the treaty with China, we do not deny the plenary power of Congress at will to abrogate each and every one of its provisions.” Brief for Appellant, Chae Chan Ping v United States, 130 US 581 (1889) No. 88-1446, *16 (filed Mar 19, 1889). “We do not deny the plenary power of Congress over the treaty and over its own legislation so as to forbid the future immigration of Chinese laborers and the future issue of [reentry] certificates.” Id at 18. 53 130 US at 600. 54 Id at 603. 55 Id at 604.

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The Court’s understanding of the scope of the power may have been influenced

by the circumstances under which it was exercised. They regarded exclusion of Chinese

as almost a war measure.

To preserve its independence, and give security against foreign aggression, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. . . . If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. The existence of war would render the necessity only more obvious and pressing. The same necessity, in a less pressing degree, may exist when war does not exist, and the same authority which adjudges the necessity on one case must also determine it in the other. In both cases, its determination is conclusive upon the judiciary.56

The Circuit Court had reached the somewhat remarkable conclusion that the

reentry certificates “are mere instruments of evidence, issued to afford convenient proof

of the identity of the party entitled to enjoy the privileges secured by the treaties, and to

prevent frauds.”57 The Supreme Court seemed to recognize that the certificates were

more than identification documents, quoting language from the statute providing that the

certificate “shall entitle the Chinese laborer to whom the same is issued to return to and

reenter the United States.”58 But that the certificates granted a “right” did not mean that

they granted a right that could not be taken away. Even if there had been a bargained-for

56 Id at 606. 57 36 F 433-34. 58 130 US at 598.

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“contract” or other agreement that Chae Chan Ping could return, the power to exclude

was an “incident of sovereignty” and thus “cannot be granted away or restrained on

behalf of anyone. [Sovereign powers] cannot be abandoned or surrendered. . . . The

exercise of these public trusts is not the subject of barter or contract.”59

The Court agreed with the Circuit Court that certain rights under a treaty or other

law would continue even if that law were superseded: “Of course, whatever of a

permanent character had been executed or vested under the treaties was not affected by it.

In that respect the abrogation of the obligations of a treaty operates, like the repeal of a

law, only upon the future, leaving transactions executed under it to stand unaffected.” 60

In 1823, a unanimous Supreme Court had held that “termination of a treaty cannot devest

rights of property already vested under it. If real estate be purchased or secured under a

treaty, it would be most mischievous to admit, that the extinguishment of the treaty

extinguished the right to such estate.”61 However, the right to reenter was not like the

right to own real property; it did not survive cancellation of the law creating it. “Between

property rights not affected by the termination or abrogation of a treaty, and the

expectation of benefits from the continuance of existing legislation, there is as wide a

difference as between realization and hopes.”62

The Court stated that any objection to the violation of the treaty provision

protecting the rights of those already present to come and go would have to come from

the beneficiary of the treaty, i.e., the Chinese government. Although this was cold

comfort to Chae Chan Ping, it was not completely meaningless. China took an active

59 Id at 609. 60 Id at 601. 61 Society for Propagation of the Gospel in Foreign Parts v Town of New-Haven, 21 US (8 Wheat) 464, 493 (1823). 62 130 US at 610.

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interest in its overseas subjects; their rights were the subject of diplomatic negotiations

and consular attention in the United States. Congress could violate treaty rights only at a

diplomatic cost. Indeed, American policy towards Asian immigration was liberalized

during World War II, the Korean War and the Vietnam War, largely because of

diplomatic and foreign policy concerns.63

From a modern perspective, an interesting aspect of the case is what was not

argued or decided. There was no claim that the Chinese Exclusion Act was flawed

because it was racially discriminatory; no equal protection challenge was made. Had

such an argument been raised, it certainly would have failed. The equal protection clause

of the Fourteenth Amendment by its terms applied only to the states, not to the federal

government. Although an equal protection principle was later read in to the due process

clause of the Fifth Amendment, the Court then took the position that “the Fifth contains

no equal protection clause and it provides no guaranty against discriminatory legislation

by Congress.”64 Accordingly, “[g]iven in congress the absolute power to exclude aliens,

it may exclude some and admit others, and the reasons for its discrimination are not open

to challenge in the courts.”65 More fundamentally, Chae Chan Ping (as well as Fong Yue

Ting) was decided a few short years before Plessy v Ferguson;66 racial classifications

were not then suspect or subject to special scrutiny, and if reasonable racial

classifications were acceptable with respect to citizens, they presumably were even more

so for noncitizens.

63 See Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965, 75 N C L Rev 273 (1996). 64 Detroit Bank v United States, 317 US 329, 337 (1943). 65 Lees v United States, 150 US 476, 480 (1893). See also In re Sing Lee, 54 F 334 (WD Mich 1893) (rejecting equal protection challenge). 66 163 US 537 (1896).

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On September 2, 1889, the New York Times reported that Chae Chan Ping had

been deported.67 Yet for Chinese immigrants as a group, and even for Chae Chan Ping,

the Court’s decision might have been regarded at the time as merely as a bump in the

road. After all, it was rendered more than seven years after the passage of the original

Chinese Exclusion Act. Therefore, in less than two years, when the ten year suspension

under the Chinese Exclusion Act expired, Chinese immigration would be restored to the

same basis as immigration of all other persons in the world. However, as the expiration

drew closer, calls for continuation of exclusion grew more strident.

Fong Yue Ting

On May 5, 1892, one day before the original act would have sunsetted, President

Harrison signed into law the Geary Act, a new and yet sterner measure.68 The Act was

entitled “An Act to prohibit the coming of Chinese persons into the United States;” by

using the words “persons” instead of “laborer,” the law signaled that it was intended to

exclude all except those specifically permitted, rather than to admit all except those

specifically excluded.69 The Geary Act extended existing exclusion laws for 10 years. It

created a presumption that any Chinese person found in the United States was deportable

“unless such person shall establish, by affirmative proof . . . his lawful right to remain in

the United States.”70 It provided that persons found to be unlawfully present should be

67 Chan Ping Leaves Us, N.Y. Times 3 (Sept 2, 1889). 68 Geary Act, Act of May 5, 1892, ch. 60, 27 Stat 25. 69 See also United States v Ah Fawn, 57 F 591 (SD Cal 1893) (holding “laborer” means any immigrant other than one coming for teaching, trade, travel, study, or curiosity.) 70 Geary Act § 3, 27 Stat at 25.

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imprisoned at hard labor before deportation, and that no bail should be allowed during

deportation proceedings.71

The most fundamental change imposed by the new law, however, was creation of

a registration program. All Chinese laborers were given one year to obtain a certificate of

residence from the collector of internal revenue. After one year, any Chinese person

“found within the jurisdiction of the United States without such certificate of residence,

shall be deemed and adjudged to be unlawfully within the United States,” and brought to

a U.S. judge, who would order deportation.72 The law created an exception for those

unable to procure the certificate “by reason of accident, sickness, or other unavoidable

cause” who could establish “by at least one credible white witness that he was a resident

of the United States at the time of the passage of this act.”73

Campaign of resistance.

The level of community organization that allowed the Chinese to obtain legal

counsel gave them the opportunity for organized resistance to a law they detested. In

California, the Chinese Six Companies organized a boycott of the registration program;

nationally, perhaps 15% of the eligible Chinese registered, leaving over 80,000 in

violation of the law.74 Every Chinese person in America was asked to contribute a dollar

to a legal defense fund. Meanwhile, in New York, the Chinese Equal Rights League was

71 Id §§ 4-5, 27 Stat 25. 72 Id § 6, 27 Stat 25-26. 73 Id. 74 Salyer, Laws Harsh as Tigers at 46-48 (cited at note 5).

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formed in part to organize resistance to the law.75 Thomas Riordan and distinguished co-

counsel arranged a test case.

The litigants were laundrymen who had lived in New York for years. Chinatown

residents Fong Yue Ting and Wong Quan had failed to apply for a residence certificate;

Lee Joe, an upper East Sider, had applied for one, but was refused because he had only

Chinese witnesses who were deemed not credible by the administrator.76

Proceedings Below

The Geary Act’s validity was tested with a speed probably unmatched by any

other fully briefed, plenary decision of the Supreme Court. The plaintiffs were arrested

on May 6, 1893; Lee Joe and Wong Quan were brought before a U.S. district judge in

New York and ordered deported. Later that day, petitions for writs of habeas corpus

were filed in the Circuit Court, the writs were issued, heard, and dismissed, applications

for appeal to the Supreme Court were filed and granted, and the immigrants were

released on bail. Present at the Circuit Court proceedings were attorneys Joseph Choate

and Maxwell Evarts,77 and representatives of the Chinese Consulate in New York and the

Chinese Legation in Washington.78 The Circuit Court record was filed in the Supreme

Court on May 8, briefs for the immigrants and for the United States were filed and

argument was heard on May 10; on May 15, 1893, the Supreme Court issued a full

written decision with three dissents. A total of nine days elapsed from the initiation of

75 Qingsong Zhang, The Origins of the Chinese Americanization Movement, in K. Scott Wong and Sucheng Chan, eds, Claiming America 52 (Temple 1998). 76 The statutory disqualification of non-white witnesses applied only to judicial proceedings. 77 Thomas Riordan’s name also appears on the Circuit Court papers, but he apparently did not sign the Supreme Court briefs. 78 Ready for the Supreme Court, N.Y. Times 8 (May 7, 1893).

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the dispute to the final decision on the merits by the highest court in the land.79 The

celerity of the proceedings, of course, was prearranged; the Chinese Minister to the

United States successfully prevailed upon the Secretary of State to help expedite the

case.80

The brief for the United States made the expected claims under domestic and

international law. Most notable to the modern reader is the frank appeal to racial

considerations. The Solicitor General’s brief noted that England had expelled

“Egyptians” and “Turks”, argued that “[a]nalogies might also be drawn from the forcible

removal by the United States of Indians, who, for this purpose, as well as in the exercise

of the treaty-making power, are regarded as aliens,”81 and noted that “Russia is now

engaged in expelling the Jews, and laws looking to a limitation upon their rights and

regulating their status have been in recent years a source of party strife in the German

Empire.”82 To the argument that the Chinese had a vested right to remain, the United

States had a telling rejoinder:

In view of past experiences of civilized communities with hordes of barbarians, it does not seem possible that a rule never yet ingrafted upon this principle of self-preservation will have its origin in this court. Again, it is now generally conceded that he most insidious and dangerous enemies to the State are not the armed foes who invade our territory, but those alien races who are incapable of assimilation, and come among us to debase our labor and poison the health and morals of the communities in which they locate.83

79 The litigation surrounding the 2000 presidential election took a comparatively leisurely two weeks to make its way from trial court to Supreme Court decision. Gore v Harris, 772 So2d 1243, 1247 (Fla Dec 08, 2000) (per curiam) (noting that trial court action filed November 27, 2000), rev’d as Bush v Gore, 531 US 98 (Dec 12, 2000). 80 McClain, In Search of Equality at 207-08 (cited at note 38). 81 Brief for the Respondents, Fong Yue Ting v United States, 149 US 698 (1893), No. 92-1345, 92-1346, 92-1347, 28, 29, 30 (May 10, 1893). 82 Id at 54. 83 Id at 55.

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Supreme Court Opinion

Fong Yue Ting, Wong Quan and Lee Joe were to be deported from the United

States; Chae Chan Ping was excluded at the border. A five justice majority,84 through

Justice Gray, held that this distinction made no constitutional difference: “The right of a

nation to expel or deport foreigners who have not been naturalized, or taken any steps

towards becoming citizens of the country, rests upon the same grounds, and is as absolute

and unqualified, as the right to prohibit and prevent their entrance into the country.”85

According to the Court, Fong Yue Ting’s rights as a resident were no more vested than

Chae Chan Ping’s as a returning resident who left with an assurance that he could return;

after all, Chae Chan Ping had been admitted permanently under the terms of a treaty then

in full force. Chae Chan Ping’s rights, being defeasible, those of current residents

enjoyed the same status: “it appears to be impossible to hold that a Chinese laborer

acquired, under any of the treaties or acts of Congress, any right, as a denizen, or

otherwise, to be and remain in this country, except by the license, permission and

sufferance of Congress, to be withdrawn, whenever, in its opinion, the public welfare

might require it.”86 After this conclusion, the rest of the case was relatively simple. The

only question was whether the provisions of the Act for some reason violated another part

of the Constitution. The Court was untroubled by the allocation of enforcement

authority. Deportation or exclusion of aliens “may be exercised entirely through

executive officers; or Congress may call in the aid of the judiciary to ascertain any

84 The Court was one person short; Justice Harlan was absent serving as US representative to the Bering Sea Arbitration. 149 US iii, n.1. 85 Fong Yue Ting v United States, 149 US 698, 707 (1893). 86 Id at 723-24.

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contested facts.”87 Imposing the burden of proof on the Chinese person, and providing

for testimony only of white witnesses “is within the acknowledged power of every

legislature to prescribe the evidence which shall be received, and the effect of that

evidence, in the courts of its own government.”88

The Court’s determination that deportation “is not a punishment for crime”89 was

pivotal, given that much of the Bill of Rights applies specifically to criminal punishment.

Accordingly, “the provisions of the Constitution, securing the right of trial by jury, and

prohibiting unreasonable searches and seizures and cruel and unusual punishments, have

no application.”90 Finally, the Court held that immigration policy presented something

close to a political question. “[W]hether, and upon what conditions, these aliens shall be

permitted to remain within the United States being one to be determined by the political

departments of the government, the judicial department cannot properly express an

opinion upon the wisdom, the policy, or the justice of the measures enacted by Congress

in the exercise of the powers confided to it by the constitution over this subject.”91

Unlike Chae Chan Ping, there was substantial opposition to the majority’s view.

Justices Brewer, Fuller and Field (author of Chae Chan Ping) dissented in three separate

opinions that ultimately made similar points. First, they rejected the idea of unlimited

inherent sovereign powers. Justice Brewer argued that “[t]his doctrine of powers

inherent in sovereignty is one both indefinite and dangerous. Where are the limits to such

powers to be found, and by whom are they to be pronounced?”92 Even if deportation

87 Id at 714. 88 Id at 729. 89 Id at 730. 90 Id. 91 Id at 731. 92 Id at 737.

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were an implied power, “yet still it can be exercised only in subordination to the

limitations and restrictions imposed by the constitution.”93 Field contended that “[a]s

men having our common humanity, they are protected by all the guaranties of the

constitution.”94 Fuller agreed.95

The dissenters also argued that permanent residents, even if aliens, were on a

different footing than those seeking admission. Chief Justice Fuller argued that lawful

immigrants had acquired a vested right: deportation amounts to “the deprivation of that

which has been lawfully acquired.”96 Justice Field agreed that the power to exclude was

plenary, but government “power to deport from the country persons lawfully domiciled

therein by its consent, and engaged in the ordinary pursuits of life, has never been

asserted . . . except for crime, or as an act of war” other than in the discredited Alien and

Sedition Acts.97 Justice Brewer argued that “[w]hatever may be true as to

exclusion . . . I deny that there is any arbitrary and unrestrained power to banish residents,

even resident aliens.”98

In addition, the dissenters agreed that deportation is punishment. Justice Brewer

explained: “Every one knows that to be forcibly taken away from home and family and

friends and business and property, and sent across the ocean to a distant land, is

punishment, and that oftentimes most severe and cruel.”99 Justice Field regarded

deportation as “punishment for his neglect [in failing to obtain a certificate,] and that,

93 Id at 738. 94 Id at 754. Field added: “According to this theory, Congress might have ordered executive officers to take the Chinese laborers to the ocean, and put them into a boat, and set them adrift, or to take them to the borders of Mexico, and turn them loose there, and in both cases without any means of support.” Id at 756. 95 Id at 761-62. 96 Id at 762. 97 Id at 746. 98 Id at 738. 99 Id at 740.

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being of an infamous character, can only be imposed after indictment, trial and

conviction.”100 Chief Justice Fuller understood the statute to be “a legislative sentence of

banishment, and, as such, absolutely void.”101

The dissenters regarded the majority’s decision as portentous. Field argued that

the constitutional “guaranties are of priceless value to every one resident in this country,

whether citizen or alien. I cannot but regard the decision as a blow against constitutional

liberty.”102 To Fuller, the Geary Act “contains within it the germs of the assertion of an

unlimited and arbitrary power, in general, incompatible with the immutable principles of

justice, inconsistent with the nature of our government, and in conflict with the written

constitution by which that government was created, and those principles secured.”103

Brewer argued that “[t]he expulsion of a race may be within the inherent powers of a

despotism,” and warned “[i]t is true that this statute is directed only against the obnoxious

Chinese, but, if the power exists, who shall say it will not be exercised to-morrow against

other classes and other people?”104

Lee Joe, Wong Quan and Fong Yue Ting paid the price for participating in the

test case. As undesirable as the Chinese might have been to Congress, the government

chose not to take the opportunity to deport the Chinese community en masse. Because of

a lack of funds, the Attorney General and the Secretary of the Treasury instructed their

officers not to enforce the law.105 In November, 1893, Congress enacted the first

immigration amnesty legislation, granting unregistered Chinese an additional six months

100 Id at 758-59. 101 Id at 763. 102 Id at 760. 103 Id at 763. 104 Id at 743. 105 Salyer, Laws Harsh as Tigers at 55-57 (cited at note 5); see also United States v Chum Shang Yuen, 57 F 588 (SD Cal 1893).

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to comply with the law.106 But of course, the deportation orders of Lee Joe, Fong Yue

Ting and Wong Quan had long since become final.

The cancellation of the certificates at issue in Chae Chan Ping and the registration

system at issue in Fong Yue Ting were based largely on the belief that the Chinese were

fraudulently abusing the system. There was certainly some truth to this;107 because legal

immigration was unavailable to most during the exclusion era, those determined to enter

had to do so illegally—as so many immigrants from so many countries do today and have

in the past. Until the mid-1920s, many Chinese came in through Canada or

Mexico,108 which were easier to enter legally. Mexico encouraged Chinese immigration

for a period and Canada while imposing a race-based head tax, had no outright exclusion

until 1923.109 In addition, the Canadian and Mexican borders with the United States

were highly permeable compared to the seaports. Aided by organized smuggling

operations, Chinese immigrants sometimes pretended to be of Mexican or African

ancestry; despite the discrimination those groups experienced in the interior of the United

States, they were better off than the Chinese at the border.

Government corruption also provided opportunities for illegal immigration.

Consular officials and immigration officers were bribed; for a fee, clerks could provide

documentation or interpreters could provide the right answers regardless of what the

applicant said. Professor Lee reports that “U.S. marshals in charge of Chinese

deportation cases routinely substituted Chinese who had been ordered back to China with

106 Act of Nov 3, 1893, Ch. 14, 28 Stat 7. 107 Salyer, Laws Harsh as Tigers at 44-45 (cited at note 5); Lee, At America’s Gates part III (cited at note 5). 108 Lee, At America’s Gates at 152-60 (cited at note 5). 109 Id at 153-54.

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other Chinese who wanted to make visits or return permanently”;110 in addition,

“[i]mmigration inspectors commonly substituted the photographs in Chinese files” or

sold “immigration papers belonging to Chinese who had returned to China

permanently.”111 Some Chinese falsely claimed to be in classes eligible to return to the

United States, such as U.S. citizens, merchants or students. The destruction of the public

records of San Francisco in the 1906 earthquake and fire facilitated fraudulent claims,

and applications for admission based on citizenship could be supported with the

testimony of Chinese.112 For almost a century, litigation over claims that Chinese

admitted as relatives of citizens were in fact “paper sons” continued.113

Otherwise law-abiding Chinese Americans were willing to oppose the exclusion

policy, reasoning, as did Marin Luther King, that there was no duty to obey unjust

laws.114 Professor Wigmore sympathetically noted that the law excluding Chinese

testimony “was itself breaking solemn treaty-faith with the very nation whose members it

thus condemned as oath- breakers; and that the supposed special danger of perjury by

Chinese attempting to evade those statutes of exile was precisely what might be expected

from the people of any country when a hostile measure is attempted to be enforced by the

harshest means.”115

The Continuing Importance of Chae Chan Ping and Fong Yue Ting

110 Id at 199. 111 Id at 200. 112 E.g., In re Jew Wong Loy, 91 F 240, 243 (ND Cal 1898). 113 Lim v Mitchell, 431 F2d 197 (9th Cir 1970). See also Pon v Esperdy, 296 F Supp 726, 727 (SDNY 1969) (discussing “Chinese confession” program under which paper sons were urged to confess). 114 Lee, At America’s Gates at 192 (cited at note 5). In his Letter from a Birmingham Jail, Dr. King explained: “Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.” Martin Luther King Jr., Why We Can’t Wait 85 (Harper & Row 1964). 115 John H. Wigmore, 1 Evidence in Trials at Common Law § 516, at 646 (Little Brown 1904).

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1. Plenary Power

In a long line of decisions fairly regarded as the progeny of Chae Chan Ping and

Fong Yue Ting, the Court has used very broad language affirming that substantive

decisions about who may be admitted are virtually immune from judicial review. 116

Even the Court in the era of Chae Chan Ping and Fong Yue Ting may not have thought

judicial review was precluded entirely; as Justice Field noted in his Fong Yue Ting

dissent, if administrative officers, having determined that applicants for admission were

ineligible, were authorized to drown or shoot them (not as punishment, but to save the

expense of removal), probably some judicial intervention would have been deemed

available.117 In addition, with respect to the procedures used to determine whether a

noncitizen present in the United States is eligible to remain, the Court has long ruled—

116 In upholding discrimination based on sex and out of wedlock birth, in 1977 the Court explained:

This Court has repeatedly emphasized that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Fiallo v Bell, 430 US 787, 792 (1977) (quoting Oceanic Navigation Co. v Stranahan, 214 US 320, 339 (1909)). In upholding exclusion based on political beliefs in 1972, the Court stated that “an unadmitted and nonresident alien, ha[s] no constitutional right of entry to this country as a nonimmigrant or otherwise.” Kleindienst v Mandel, 408 US 753, 762 (1972). In 2003, the Court observed: “In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Demore v Hyung Joon Kim, 538 US 510, 521 (2003) (quoting Mathews v Diaz, 426 US 67, 79-80 (1976)). See also Galvan v Press, 347 US 522, 531 (1954) (“That the formulation of [policies pertaining to the entry of aliens and their right to remain here] is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government”).

117 Cf. Zadvydas v Davis, 533 US 678 (2001) (holding that method of deportation, indefinite detention, after a deportation order that the government has been unable to carry out, was subject to due process scrutiny).

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beginning in cases involving Asian immigrants decided early in the 20th Century--that the

basic elements of due process apply.118

The critical question is whether there is any classification, even one based on

race, religion, sex or political grounds, which the Supreme Court might deem beyond the

power of Congress to determine who may be admitted to or remain in the country.

Language in some of the early and modern cases seems to support the idea that judicial

review of such determinations is available,119 and this may ripen one day into a judicial

standard that would strike down a modern reincarnation of the Chinese Exclusion Act.

But it remains true today that in its actual decisions, “The Court without exception has

sustained Congress’ ‘plenary power to make rules for the admission of aliens.’”120

Accordingly, the holding of Chae Chan Ping and Fong Yue Ting that for

noncitizens, living in the United States is a privilege rather than a right, continues to

accurately state the law. As Justice Frankfurter explained, if federal immigration law has

been “based . . . in part on discredited racial theories [and] whether immigration laws

118 Kwock Jan Fat v White, 253 US 454 (1920); Chin Yow v United States, 208 US 8 (1908); Yamataya v Fisher, 189 US 86 (1903). 119 For example, in Zadvydas v Davis, 533 US 678, 695 (2001), the Court said:

The Government also looks for support to cases holding that Congress has “plenary power” to create immigration law, and that the Judicial Branch must defer to Executive and Legislative Branch decisionmaking in that area. Brief for Respondents in No. 99-7791, at 17, 20 (citing Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952)). But that power is subject to important constitutional limitations. See INS v. Chadha, 462 U.S. 919, 941-942 (1983) (Congress must choose “a constitutionally permissible means of implementing” that power); The Chinese Exclusion Case, 130 U.S. 581, 604 (1889) (congressional authority limited “by the Constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations”).

120 United States v Valenzuela-Bernal, 458 US 858, 864 (1982) (quoting Kleindienst v Mandel, 408 US 753, 766 (1972) (quoting Boutilier v INS, 387 US 118, 123 (1967)).

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have been crude and cruel, whether they may have reflected xenophobia in general or

anti-Semitism or anti-Catholicism, the responsibility belongs to Congress.”121

2. Deportation is not Punishment

Related to the idea that noncitizens have no right to remain in the United States is

the principle recognized in Chae Chan Ping and Fong Yue Ting that deportation is not

punishment. The Court reinforced the point in Wong Wing v United States,122 that was

decided three years after Fong Yue Ting and explored an aspect of the Geary Act that was

not at issue in the earlier case. Under the statute, Chinese found without a certificate and

ordered deported were first to be summarily “imprisoned at hard labor for a period not

exceeding one year.”123 When Wong Wing challenged his 60-day sentence to the Detroit

House of Correction, the Court held that summary imprisonment was unconstitutional,

but its opinion emphasized the powers of Congress to control immigration by methods

falling short of summary imprisonment. The Court held that confinement was a proper

means to the end of deportation; “[p]roceedings to exclude or expel would be vain if

those accused could not be held in custody pending the inquiry into their true character,

and while arrangements were being made for their deportation.”124 An immigration

violation could also be made “an offense punishable by fine or imprisonment, if such

offense were to be established by a judicial trial.”125 But Wong Wing was summarily

imprisoned as punishment, not preliminary to deportation.

121 Harisiades v Shaughnessy, 342 US 580, 597 (1952) (Frankfurter) (concurring). 122 163 US 228 (1896). 123 Geary Act § 4, 27 Stat 25. 124 163 US at 235. 125 Id.

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No limits can be put by the courts upon the power of Congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel them if they have already found their way into our land, and unlawfully remain therein. But to declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property, would be to pass out of the sphere of constitutional legislation, unless provision were made that the fact of guilt should first be established by a judicial trial.126

Although imprisonment is punishment, nothing else associated with deportation

is.127 Many constitutional provisions apply exclusively to government action constituting

punishment. United States residence is a valuable right, deprivation of which, the

Supreme Court has recognized, may mean “loss of both property and life, or of all that

makes life worth living.”128 Nevertheless, the ex post facto clause is inapplicable, and

Congress is free to deport resident noncitizens for conduct that was perfectly legal when

it occurred.129 The constitutional requirements of reasonable bail,130 speedy trial131 and

jury trial132 are also inapplicable, and deportation cannot constitute cruel and unusual

punishment.

3. Asian Exclusion

Chae Chan Ping and Fong Yue Ting gave Congress essentially a free hand with

respect to noncitizens outside or inside the United States. Chinese immigrants permitted

126 Id at 237. 127 Even deportation for conviction of crime is not punishment; according to the Court, “[t]he coincidence of the local penal law with the policy of Congress is an accident.” Bugajewitz v Adams, 228 US 585, 592 (1913). 128 Ng Fung Ho v White, 259 US 276, 284 (1922). 129 Galvan v Press, 347 US 522 (1954) (noncitizens membership in Communist Party at a time when membership was not grounds for deportation could retroactively be made a ground for deportation). 130 Carlson v Landon, 342 US 524, 544-46 (1952). 131 Prieto v Gluch, 913 F2d 1159, 1161 (6th Cir 1990). 132 Sabino v Reno, 8 F Supp 2d 622, 624 (SD Tex 1998).

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to enter were prohibited by law from becoming naturalized citizens—a ban that ended

only in 1943--so they would remain perpetually foreign. The last open constitutional

question was the citizenship status of those born here. In United States v Wong Kim

Ark,133 the Justice Department took the position that Chinese born in the United States

were not citizens, the Fourteenth Amendment134 notwithstanding. “There certainly should

be some honor and dignity in American citizenship,” they argued, “that would be sacred

from the foul and corrupting taint of a debasing alienage.”135

Wong Kim Ark was represented by Thomas Riordan, who lost in Chae Chan

Ping, and Maxwell Evarts, and J. Hubley Ashton, who lost in Fong Yue Ting, but this

time, the outcome was different. By a vote of 7 to 2, the Court held that even persons of

Chinese racial ancestry born in the United States were citizens: “[w]hatever

considerations, in the absence of a controlling provision of the Constitution, might

influence the legislative or executive branch of the government to decline to admit

persons of the Chinese race to the status of citizens of the United States, there are none

that can constrain or permit the judiciary to give full effect to the peremptory and explicit

language of the fourteenth amendment.”136 Wong Kim Ark preserved the possibility of

the growth of an Asian-American community in the United States; a contrary holding

would have left Asians without a vested right to remain no matter how many generations

their families had been in this country.

However, the policy of exclusion continued. The Geary Act upheld in Fong Yue

Ting extended Chinese Exclusion for ten years, to 1902 and then indefinitely, but over

133 169 US 649 (1898). 134 US Const amend XIV § 1 (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”) 135 Brief for the United States at 37, United States v Wong Kim Ark, 169 U.S. 649 (1898) (No. 95-904). 136 169 US at 694.

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time Chinese Exclusion became Asian Exclusion, which was a feature of American

immigration policy until 1965.137 In 1907-08, an exchange of diplomatic notes called the

“Gentlemen’s Agreement” restricted the immigration of Japanese; in 1917, Congress

created the Asiatic barred zone, marking out a geographical area from which no Asians

could immigrate. In 1924, the right to immigrate was tied to racial eligibility for

naturalization; all aliens ineligible to citizenship were excluded. Because Asians

remained racially ineligible for naturalization, they were kept out. These policies were

modified over time, but as late as 1965, federal courts upheld laws classifying Asian

immigrants by race, while all others were classified by nativity.138 In 1965, for the first

time in United States history, immigration policy was put on an entirely race-neutral

basis.

137 See Hing, Making and Remaking Asian America (cited at note 5). 138 Hitai v INS, 343 F2d 466 (2d Cir 1965).